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The struggle for press self-regulation in contemporary South Africa: charting a - page 15 / 51





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Another issue raised by Pahad was the waiver issue. Part of the rationale of the Press Council and Ombudsman is that the system should be cheap for complainants and defendants – it saves the costs of a complete civil law case. But going with this is the requirement that complainants should forfeit their rights to take their grievance further such as by launching a civil case against the relevant publication or approaching the Human Rights Commission. One argument in favour of this is that it prevents complainants from wasting the time of the Ombudsman when they would have the reserve option of escalating the issue in the event of finding that their complaint was not upheld. Another is that complainants would abuse the Council process to fish for information about what defences the publication would be likely to mount in defending a subsequent civil action.

However, despite these arguments, the ANC through various representatives continued to express unhappiness with the existing requirement whereby complainants had to agree to forfeit rights to initiate civil law suits against a newspaper if they accept the jurisdiction of the Ombudsman. The ANC's spokesperson Jesse Duarte for instance stated: "The self regulation of the media suppresses the rights of citizens from taking the media to court.” SOURCE It appeared that several ANC people seemed to assume that the public were given no choice in the matter: that they were bound to take complaints to the Press Council rather than the courts, whereas the waiver system does not prevent individuals from ignoring the body altogether and taking private legal action directly in the courts or approaching an agency like the Human Rights Commission.  Government people also pointed out that the Broadcast Complaints Commission of South Africa does not require a waiver system. The BCCSA constitution provides that:

“When at any stage of the proceedings, the Chairperson is of the opinion that it is in the interest of fairness that a complainant must waive his or her rights to further legal recourse, the Chairperson shall require the complainant to waive such rights. If a complaint deals with a matter already before a South African Court the Commission will not consider it.”  

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